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Habeas corpus ( ) (Latin: You (shall) have the body) is a legal action,
or writ, through which a person can seek
relief from their unlawful detention or that of another
person. It protects individuals from harming themselves or from
being harmed by the judicial system.
Of
English origin, the writ of habeas corpus has historically
been an important instrument for the safeguarding of individual
freedom against arbitrary state action.

A writ of habeas corpus ad subjiciendum, also known as
"The Great Writ", is a summons with the force of a court order
addressed to the custodian (such as a prison official) demanding
that a prisoner be brought before the court, together with proof of
authority, allowing the court to determine whether that custodian
has lawful authority to hold that person; if not, the person shall
be released from custody. The prisoner, or another person on his
behalf (for example, where the prisoner is being held incommunicado), may petition the
court or an individual judge for a writ of habeas corpus.

The right to petition for a writ
of habeas corpus has long been celebrated as the most efficient
safeguard of the liberty of the subject. The British jurist
Albert Venn Dicey wrote that the
Habeas Corpus Acts "declare no principle and define no rights, but
they are for practical purposes worth a hundred constitutional
articles guaranteeing individual liberty." In most countries,
however, the procedure of habeas corpus can be suspended in time of
national emergency. In most civil law jurisdictions, comparable
provisions exist, but they may not be called "habeas corpus." The
reach of habeas corpus is currently being tested in the United
States. Oral arguments on a consolidated Guantanamo Bay
detention camp detainee habeas corpus petition, Al Odah v.United States were heard by
the Supreme Court of the United
States on December 5, 2007. On June 12, 2008, the
U.S. Supreme Court ruling in Boumediene v.Bush recognized habeas corpus rights
for the Guantanamo prisoners. On October 7, 2008, the first
Guantanamo prisoners were ordered released by a court considering a
habeas corpus petition.

The writ of habeas corpus is one of what are called the
"extraordinary", "common law", or "prerogative writs", which were historically
issued by the courts in the name of the monarch to control inferior
courts and public authorities within the kingdom. The most common
of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. When the original 13 American Colonies declared
independence and became a constitutional republic in which the
people are the sovereign, any person, in the name of the people,
acquired authority to initiate such writs.

The due process for such petitions is not simply civil or criminal,
because they incorporate the presumption of nonauthority. The
official who is the respondent has the burden to prove his
authority to do or not do something. Failing this, the court must
decide for the petitioner, who may be any person, not just an
interested party. This differs from a motion in a civil process in
which the movant must have standing, and bears the burden of
proof.

Derivation and form

The right of habeas corpus is referred to in full in legal texts as
habeas corpus ad subjiciendum or more
rarely ad subjiciendum et recipiendum.
The name derives from the operative words of the writ in Medieval
Latin:

The word habeas in the writ is not in the indicative mood
("You have ..."), but in the subjunctive (specifically the volitive
subjunctive): "We command that you have ...". The full
name of the writ is often used to distinguish it from similar
ancient writs:

Habeas corpus ad deliberandum et recipiendum, a writ
for bringing an accused from a different county into a court in the
place where a crime had been committed for purposes of trial, or
more literally to return holding the body for purposes of
“deliberation and receipt” of a decision;

Habeas corpus ad faciendum et recipiendum, also called
habeas corpus cum causa, a writ of a superior court to a
custodian to return with the body being held by the order of a
lower court "with reasons", for the purpose of “receiving” the
decision of the superior court and of “doing” what it ordered;

Habeas corpus ad prosequendum, a writ ordering return
with a prisoner for the purpose of “prosecuting” him before the
court;

Habeas corpus ad respondendum, a writ ordering return
to allow the prisoner to “answer” to new proceedings before the
court;

Habeas corpus ad satisfaciendum, a writ ordering
return with the body of a prisoner for “satisfaction” or execution
of a judgment of the issuing court; and

Habeas corpus ad testificandum, a writ ordering return
with the body of a prisoner for the purposes of “testifying”.

That the basic form of the writs of habeas corpus, now written in
English, has changed little over the centuries can be seen from the
following examples:

History of habeas corpus in England

The foundations for Habeas Corpus were established by the Magna Carta of 1215. Blackstone cites the first recorded usage
of habeas corpus ad subjiciendum in 1305, during the reign
of King Edward I. However, other
writs were issued with the same effect
as early as the reign of Henry
II in the 12th century. Blackstone explained the basis of the
writ, saying:

The procedure for the issuing of writs of habeas corpus was first
codified by the Habeas Corpus Act
1679, following judicial rulings which had restricted the
effectiveness of the writ. A previous act had been passed in 1640
to overturn a ruling that the command of the King was a sufficient
answer to a petition of habeas corpus.

Then, as now, the writ of habeas corpus was issued by a superior
court in the name of the Sovereign, and commanded the addressee (a
lower court, sheriff, or private subject) to produce the prisoner
before the Royal courts of law. A habeas corpus petition could be
made by the prisoner himself or by a third party on his behalf and,
as a result of the Habeas Corpus Acts, could be made regardless of
whether the court was in session, by presenting the petition to a
judge.

Since the 18th century the writ has also been used in cases of
unlawful detention by private individuals, most famously in
Somersett's Case (1771),
where the black slave Somersett was ordered to be freed, the famous
words being quoted (or misquoted, see Somersett's Case):

The privilege of habeas corpus has been suspended or restricted
several times during English history, most recently during the 18th
and 19th centuries. Although internment without trial has been
authorised by statute since that time, for example during the two
World Wars and the Troubles in Northern Ireland, the procedure of habeas corpus has in modern times
always technically remained available to such internees.
However, as habeas corpus is only a procedural device to examine
the lawfulness of a prisoner's detention, so long as the detention
was in accordance with an Act of
Parliament, the petition for habeas corpus would be
unsuccessful. Since the passage of the Human Rights Act 1998, the courts have
been able to declare an Act of Parliament to be incompatible with
the European
Convention on Human Rights. However, such a declaration of
incompatibility has no immediate legal effect until it is acted
upon by the government.

The wording of the writ of habeas corpus implies that the prisoner
is brought to the court for the legality of the imprisonment to be
examined. However, rather than issuing the writ immediately and
waiting for the return of the writ by the custodian, modern
practice in England is for the original application to be followed
by a hearing with both parties present to decide the legality of
the detention, without any writ being issued. If the detention is
held to be unlawful, the prisoner can usually then be released or
bailed by order of the court without having to
be produced before it. It is also possible for individuals held by
the state to petition for judicial
review, and individuals held by non-state entities to apply for
an injunction.

Ireland

In
Ireland the principle of habeas corpus is guaranteed by
Article 40, Section 4 of the Irish constitution. This
guarantees "personal liberty" to each individual and outlines a
detailed habeas corpus procedure, without actually mentioning the
Latin term. However, it also provides that habeas corpus is not
binding on the Defence Forces
during a state of war or armed rebellion.

Before the Second Amendment, an individual detained had the
constitutional right to apply to any High Court judge for a
writ of habeas corpus and to as many High Court judges as they
wished. Since the Second Amendment, a prisoner has a right to apply
to only one judge, and, once a writ has been issued, the President
of the High Court has authority to choose the judge or panel of
three judges who will decide the case. The amendment also added a
requirement that when the High Court believed someone's detention
to be invalid due to the unconstitutionality of a law, it must
refer the matter to the Irish
Supreme Court and may release the individual on bail only in
the interim.

In 1965, the Supreme Court ruled in the O'Callaghan case
that the provisions of the constitution meant that an individual
charged with a crime could be refused bail only if they were likely
to flee or to interfere with witnesses or evidence. Since the
Sixteenth Amendment, it has been possible for a court to take into
account whether a person has committed serious crimes while on bail
in the past.

India

The Indian judiciary in a catena of cases has effectively resorted
to the writ of habeas corpus only to secure release of a person
from illegal detention.

The Indian judiciary has dispensed with the traditional doctrine of
locus standi. If a detained person is not in a position to
file a petition, it can be moved on his behalf by any other person.
The scope of habeas relief has expanded in recent times by actions
of the Indian judiciary. The habeas writ was used in the Rajan criminal case.

Malaysia

In
Malaysia, the right
of habeas corpus, short of the name, is enshrined in the Federal
Constitution. Article 5(2) provides that "Where complaint is
made to a High Court or any judge thereof that a person is being
unlawfully detained the court shall inquire into the complaint and,
unless satisfied that the detention is lawful, shall order him to
be produced before the court and release him."

As there are several statutes, for example, the Internal Security Act 1960,
that still permit detention without trial, the procedure is usually
effective in such cases only if it can be shown that there was a
procedural error in the way that the detention was ordered.

New Zealand

While habeas corpus is generally used on the government, it can
also be used on individuals. In 2006, a child was allegedly
kidnapped by his mother's father after a custody dispute. The
father filed habeas corpus against the mother, the grandfather, the
grandmother, the great grandmother, and another person alleged to
have assisted in the kidnap of the child. The mother did not
present the child to the court and was imprisoned for contempt of court. She was released when
the child's grandfather came forward with him in late January
2007.

Philippines

In the Bill of Rights in the Filipino Constitution,
habeas corpus is listed near-identically to the U.S. Constitution
in Article 3, Section 15:

"The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion or rebellion when the public safety
requires it."

In 1971, after the Plaza
Miranda bombing, the Marcos Administration, under Ferdinand Marcos lifted the writ of Habeas
Corpus in an effort to stifle the oncoming insurgency, having
blamed the CPP
for the events of August 21. After widespread protests against
this, however, the Marcos Administration decided to bring back the
writ. Many consider this to be a prelude to Martial Law.

Poland

An act similar to Habeas corpus was adopted in Poland as early as
in 1430. Neminem
captivabimus, short for , (Latin, "We
shall not arrest anyone without a court verdict") was one of the
basic rights in Poland and Polish-Lithuanian
Commonwealth, stating that the king can neither punish nor
imprison any member of the szlachta without a viable court
verdict. Its purpose is to release someone who has been
arrested unlawfully. Neminem captivabimus has nothing to
do with whether the prisoner is guilty, only with whether due
process has been observed.

Portugal

The Constitution of
Portugal states that Habeas corpus shall be available to
counter the misuse of power in the form of illegal arrest,
imprisonment or detention. According to the Portuguese Penal
Process Code, the application for it shall be made to the judge
conducting the preliminary investigations or to the Portuguese Supreme Court of
Justice.

The reasons that may justify an habeas corpus are: exceeded the
period to deliver the detainee to judicial power; exceeded the
detention period stated by law or judicial decision; detention
outside the legally allowed places; detention ordered by an
incompetent authority; and detention motivated for fact for which
the law does not allow detention.

Spain

In 1526 the Fuero Nuevo of Señorío de Vizcaya establishes the
hábeas corpus in its territory.The present Spanish Constitution states that A
habeas corpus procedure shall be provided for by law to ensure the
immediate handing over to the judicial authorities of any person
illegally arrested. The law which regulates the procedure is
the Law of Habeas Corpus of 24 May 1984 which provides
that a person imprisoned may, on his own or through a third person,
allege his Habeas Corpus right and request to appear before a
judge. The request must specify the grounds on which the detention
is considered to be unlawful which can be, for example, that the
imprisoner does not have the legal authority, or that the
prisoner's constitutional rights were violated or that he was
subject to mistreatment, etc. The judge may then request additional
information if needed and may issue an Habeas Corpus order at which
point the holding authority has 24 hours to bring the prisoner
before the judge.

United States

The writ of habeas corpus ad subjiciendum is a civil, not
criminal, ex parte proceeding in which a
court inquires as to the legitimacy of a prisoner's custody.
Typically, habeas corpus proceedings are to determine whether the
court which imposed sentence on the defendant had jurisdiction and
authority to do so, or whether the defendant's sentence has
expired. Habeas corpus is also used as a legal avenue to challenge
other types of custody such as pretrial detention or detention by
the United
States Bureau of Immigration and Customs Enforcement pursuant
to a deportation proceeding.

Scope

The writ of Habeas Corpus was originally understood to apply only
to those held in custody by officials of the
Executive Branch of the federal government and not to those
held by state governments, which independently afford habeas corpus
pursuant to their respective constitutions and laws. The United
States Congress granted all federal courts jurisdiction under to
issue writs of habeas corpus to release prisoners held by any
government entity within the country from custody in the following
circumstances:

*Is in custody under or by color of the authority of the United
States or is committed for trial before some court thereof; or

*Is in custody for an act done or omitted in pursuance of an
Act of Congress, or an order, process, judgment or decree of a
court or judge of the United States; or

*Is in custody in violation of the Constitution or laws or
treaties of the United States; or

*Being a citizen of a foreign state and domiciled therein is in
custody for an act done or omitted under any alleged right, title,
authority, privilege, protection, or exemption claimed under the
commission, order or sanction of any foreign state, or under color
thereof, the validity and effect of which depend upon the law of
nations; or

*It is necessary to bring said persons into court to testify or
for trial.

In the
1950s and 1960s, decisions by the WarrenSupreme
Court greatly expanded the use and scope of the federal
writ, and the most publicized use of the writ of Habeas corpus in
modern times has been to allow federal courts to review death penalty proceedings; however, far more
non-capital habeas petitions are reviewed by the federal
courts. In the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed
the writ, though the number of habeas petitions filed has continued
to rise.

The Antiterrorism
and Effective Death Penalty Act of 1996 further limited the use
of the federal writ by imposing a one-year statute of limitations
and dramatically increasing the federal judiciary's deference to
decisions previously made in state court proceedings either on
direct appeal from the conviction and sentence, or in a state court
habeas corpus action and the associated second round of state
appeal (both of which, in the usual case, occur before a federal
habeas petition is filed).

Suspension during World War II and its aftermath

In 1942,
the Supreme Court ruled in Ex parte
Quirin that unlawful
combatant saboteurs could be denied habeas corpus and tried by
military commission, making a distinction between lawful and
unlawful combatants. The writ was suspended in Hawaii during
World War II, pursuant to a section of the Hawaiian Organic Act,
when martial law was declared in Hawaii in the aftermath of the
Japanese attack on Pearl Harbor. The period of martial law in
Hawaii ended in October 1944, Duncan v.Kahanamoku, 327 U.S. 304 (1946), held that assuming that
the initial imposition of martial law in December 1941 was lawful
due to the Pearl Harbor attack and threat of imminent invasion,
because by 1944 the imminent threat had receded and civilian courts
could again function in Hawaii, the Organic Act did not authorize
the military to continue to keep civilian courts closed.

The AEDPA contained one of the few limitations on habeas corpus.
For the first time, its Section 101 set a statute of limitations of one year
following conviction for prisoners to seek the writ. It limits the
power of federal judges to grant relief unless the state court's
adjudication of the claim resulted in a decision that was (1)
contrary to, or involved an unreasonable application of clearly
established federal law as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. It generally but not
absolutely barred second or successive petitions, with several
exceptions. Petitioners who had already filed a federal habeas
petition were required first to secure authorization from the
appropriate United States Court of Appeals, to ensure that such an
exception was at least facially made out.

“(1) Except as provided in section 1005 of the Detainee Treatment Act of
2005, no court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the Department of Defense
at Guantánamo Bay, Cuba.

“(2) The jurisdiction of the
United States Court of Appeals for the District of Columbia
Circuit on any claims with respect to an alien under this
paragraph shall be limited to the consideration of whether the
status determination ... was consistent with the standards and
procedures specified by the Secretary of Defense for Combatant
Status Review Tribunals (including the requirement that the
conclusion of the Tribunal be supported by a preponderance of the
evidence and allowing a rebuttable presumption in favor of the
Government's evidence), and to the extent the Constitution and laws
of the United States are applicable, whether the use of such
standards and procedures to make the determination is consistent
with the Constitution and laws of the United States.”

On 29 September 2006, the House and Senate approved the Military Commissions Act of
2006 (MCA), a bill that would remove habeas corpus for any
person determined to be an “unlawful enemy combatant" engaged in
hostilities or having supported hostilities against the United
States” by a vote of 65–34. (This was the result on the bill to
approve the military trials for detainees; an amendment to remove
the unavailability of habeas corpus failed 48–51.)
President Bush signed the Military Commissions Act of 2006 into law
on October 17, 2006. The declaration of a person as an "unlawful
enemy combatant" is at the discretion of the US executive branch of
the administration, and there is no right of appeal, with the
result that this potentially eliminates habeas corpus for any
non-citizen.

With the MCA's passage, the law altered the language from “alien
detained ... at Guantánamo Bay”:

“Except as provided in section 1005 of the Detainee Treatment
Act of 2005, no court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who has
been determined by the United States to have been properly detained
as an enemy combatant or is awaiting such determination.”
§1005(e)(1), 119 Stat. 2742.

On 20 February 2007, the U.S. Court of Appeals for the District of
Columbia Circuit upheld this provision of the MCA in a 2–1 decision
of the Case Boumediene
v.Bush.
The
Supreme Court let the Circuit Court's decision stand by refusing
to hear the detainees' appeal. On June 29, 2007, the U.S.
Supreme Court reversed its April 2007 decision and agreed to hear
the appeals of Guantanamo detainees who are seeking habeas corpus
review of their detentions.

Under the MCA, the law restricts habeas appeals for only those
aliens detained as "enemy combatants," or awaiting such
determination. Left unchanged is the provision that, after such
determination is made, it is subject to appeal in U.S. Court,
including a review of whether the evidence warrants the
determination. If the status is upheld, then their imprisonment is
deemed lawful.

There is, however, no legal time limit which would force the
government to provide a Combatant Status Review
Tribunal (CSRT) hearing. Prisoners are legally prohibited from
petitioning any court for any reason before a CSRT hearing takes
place.

On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that
while habeas corpus is "one of our most cherished rights," the
United States Constitution does not expressly guarantee habeas
rights to United States residents or citizens. As such, the law
could be extended to U.S. citizens and held if left
unchecked.

As Robert Parry writes in the Baltimore Chronicle &
Sentinel:

To date, there has been at least one confirmed case in which
non-American civilians have been incorrectly classified as enemy
combatants.

On June 7, 2007, the Habeas Corpus Restoration
Act of 2007 was approved by the Senate Judiciary Committee with
an 11–8 vote split along party lines, with all but one Republican voting against
it. Although the Act would restore statutory habeas corpus to enemy
combatants, it would not overturn the provisions of the AEDPA which
set a statute of limitations on habeas corpus claims from ordinary
civilian federal and state prisoners.

On June 11, 2007, a federal appeals court ruled that Ali Saleh Kahlah al-Marri, a legal
resident of the United States, could not be detained indefinitely
without charge. In a two-to-one ruling by the Fourth
Circuit Court of Appeals, the Court held the President of the United States
lacks legal authority to detain al-Marri without charge; all three
judges ruled that al-Marri is entitled to traditional habeas corpus
protections which give him the right to challenge his detainment in
a U.S. Court.

In July 2008, the Richmond-based 4th Circuit Court rules: "if
properly designated an enemy combatant pursuant to the legal
authority of the President, such persons may be detained without
charge or criminal proceedings for the duration of the relevant
hosilities."

On October 7, 2008, US District Court judgeRicardo M. Urbina ruled
that 17 Uyghurs, Muslims from China's northwestern Xinjiang region, must be brought to appear in his
court in Washington, DC, three days later:"Because the Constitution
prohibits indefinite detentions without cause, the continued
detention is unlawful."

On January 21, 2009, US President Barack Obama issued an executive
order regarding the Guantanamo Bay Naval Base and the individuals
held there. This order asserted that "[they] have the
constitutional privilege of the writ of habeas corpus".

Differences in post-trial actions

Habeas corpus is an action often taken after sentencing by a
defendant who seeks relief for some perceived error in his criminal
trial. There are a number of such post-trial actions and
proceedings, their differences being potentially confusing, thus
bearing some explanation. Some of the most common are an appeal to
which the defendant has as a right, a writ of certiorari, a writ
coram nobis and a writ of habeas corpus.

An appeal to which the defendant has a right cannot be abridged by
the court which is, by designation of its jurisdiction, obligated
to hear the appeal. In such an appeal, the appellant feels that
some error has been made in his trial, necessitating an appeal. A
matter of importance is the basis on which such an appeal might be
filed: generally appeals as a matter of right may only address
issues which were originally raised in trial (as evidenced by
documentation in the official record). Any issue not raised in the
original trial may not be considered on appeal and will be
considered estoppel. A convenient test for
whether a petition is likely to succeed on the grounds of error is
confirming that (1) a mistake was indeed made (2) an objection to
that mistake was presented by counsel and (3) that mistake
negatively affected the defendant’s trial.

A writ of certiorari, otherwise known simply as cert, is an order
by a higher court directing a lower court to send record of a case
for review, and is the next logical step in post-trial procedure.
While states may have similar processes, a writ of cert is usually
only issued, in the United States, by the Supreme Court, although
some states retain this procedure. Unlike the aforementioned
appeal, a writ of cert is not a matter of right. A writ of cert
will have to be petitioned for, the higher court issuing such writs
on limited bases according to constraints such as time. In another
sense, a writ of cert is like an appeal in its constraints; it too
may only seek relief on grounds raised in the original trial.

A petition for a writ coram nobis, is a
post-judgment attack on the outcome of the case. It is made to the
trial court and claims that there are errors requiring the court to
set aside the verdict and/or the sentence. Use of the writ coram
nobis varies from jurisdiction to jurisdiction. However, in most
jurisdictions it is limited to situations where a direct appeal was
not previously possible—usually because the issue was simply
unknown at the time of appeal (that is, a "latent" issue) or
because the issue otherwise could not be raised on appeal because
of procedural barriers. A common basis for coram nobis petitions is
the claim of ineffective assistance of counsel where the alleged
ineffectiveness is not shown on the record of the court. In such
cases, direct appeal is usually impossible because the critical
events are not visible on the record where the appellate court can
see them. Thus, a prompt coram nobis petition might be an important
vehicle for a defendant to use.

A writ of habeas corpus is often the last opportunity for the
defendant to find relief against his guilty conviction. Habeas
corpus may be pursued if a defendant is unsatisfied with the
outcome of his appeal and has been refused (or did not pursue) a
writ of cert, at which point he may petition one of several courts
for a writ of habeas corpus. Again, these are granted at the
discretion of the court and require a petition. Like appeals or
writs of cert, a writ of habeas corpus may overturn a defendant's
guilty conviction by finding some error in the original trial. The
major difference is that writs of habeas corpus may, and often,
focus on issues that lay outside the original premises of the
trial, i.e., issues that could not be raised by appeal or writs of
cert. These often fall in two logical categories: (1) that the
trial lawyer was ineffectual or incompetent or (2) that some
constitutional right has been violated.

As one moves farther down the chain of post-trial actions, relief
becomes progressively more unlikely. Knowing the differences
between these actions and their intended use are an important tool
in increasing one's chances for a favorable outcome. Use of a
lawyer is therefore often considered advisable to aid one
attempting to traverse the complex post-trial landscape.